Does the Fair Housing Act Merely Require that People Be Treated Equally Regardless of Race, or Does it Require Equal Outcomes?

Washington, DC – U.S. Supreme Court justices meet today to discuss which cases they will hear during the Court’s upcoming term. Activists with the Project 21 black leadership network urge them to approve the organization’s request to accept a case addressing “disparate racial impact” claims under the Fair Housing Act.

The justices today will consider whether to hear the case of Texas Department of Housing and Community Affairs, et al. v. The Inclusive Communities Project, Inc., which is on appeal from the federal Fifth Circuit Court of Appeals. On July 16, Project 21 joined an amici curiae legal brief submitted to the Court July asking the justices to accept the case and to define the legal scope of the Fair Housing Act. The brief argues the Act was written “to apply solely to disparate treatment, not acts having disparate impact on protected classes” and argues the U.S. Supreme Court must “consider the threshold question of whether disparate impact claims are even cognizable under the Fair Housing Act” since “disparate impact claims do not depend on the intent of the action or policy.”

“Project 21 and the other organizations joined together to urge the Supreme Court to act on this case because it is vital to test the legality of disparate impact claims made in the name of the Fair Housing Act,” said Project 21’s Hughey Newsome, a financial planner. “The notion that disparate impact claims can go beyond the intent of the authors of specific laws and with the only burden of proof for the accused is, in itself, disproportionate harm. And, regardless of the purpose, it sets a dangerous precedent. Once such a precedent is set, it seems there is really no limit to what can be done in the name of justice.”

The legal brief was written by the Pacific Legal Foundation and joined by the Center for Equal Opportunity, Competitive Enterprise Institute, Cato Institute, Individual Rights Foundation and Reason Foundation.

The Inclusive Communities Project claims the Texas Department of Housing and Community Affairs, a state agency, violated the federal Fair Housing Act by allocating housing tax credits to developers in a manner that keeps minorities in low-income minority-majority neighborhoods in the Dallas metropolitan area. ICP charges the department’s tax credit distribution policy creates a disparate impact on black recipients of such credits as a class rather than addressing individual instances of alleged abuse.

“The framers of our government pledged to us a society based on a simple premise — that every American would be treated equally under the law. The 13th, 14th and 15th Amendments made clear that this concept applied in matters of race,” said Project 21 Co-Chairman Horace Cooper, a legal commentator who taught constitutional law at George Mason University and is a former leadership staff member for the U.S. House of Representatives. “The disparate impact doctrine runs counter to this notion and, in particular, it does so where racial lines are involved. If we’re going to permanently end the temptation by government to divide us into racial groupings, we’ve got to return to the principles embodied in our Constitution and the color-blind policy advocated by Martin Luther King.”

In the past few years, the U.S. Supreme Court has twice accepted similar cases. However, these cases, Mount Holly v. Mt. Holly Gardens Citizens in Action, Inc. and Magner v. Gallagher, were removed from the Court’s schedule because they were settled prior to argument.

“Politically-motivated settlements in the past have kept the justices from ruling on this important question of whether or not the Fair Housing Act should be expanded to apply to the impact of policies and not just outright discrimination as was envisioned by the lawmakers who crafted it,” said Project 21 Co-Chairman Cherylyn Harley LeBon, a former senior counsel for the U.S. Senate Judiciary Committee. “The Supreme Court would be wise to take this opportunity to finally tackle this important question.”

Citing the fact that appellate court jurisdictions have already tried to resolve this issue, but have formulated different ways in which to deal with claims, the brief points out that “[r]esolution of the question by this case would end the diversity of results that occur when different jurisdictions analyze substantially similar disparate impact claims.” Furthermore, “[s]ubjecting government defendants to disparate impact claims pressure them into engaging in unconstitutional race-conscious decisionmaking to avoid liability for such claims.”

“Lower courts try to answer this tricky question, and the result is a patchwork quilt of different remedies. Civil rights law cannot change from region to region. The Supreme Court needs to determine if such enforcement is even constitutional, and then — if it is — create a uniform way to deal with it,” said Project 21’s LeBon.

Project 21’s Cooper added: “It is one thing for the law to say that no person may be mistreated due to their race, but it is something alien and distinct to say that merely because of their race they’ll receive different treatment.”

In 2014, Project 21 members have been interviewed or cited by the media on current events over 1,300 times, including by the Fox News Special Report with Bret Baier, the O’Reilly Factor, Fox and Friends, CNN’s Situation Room, Salem Radio Network, Sean Hannity, Jim Bohannon, Conservative Commandos Radio, Bill Martinez, Radio America, American Urban Radio Network, Bill Cunningham, Roger Hedgecock, Mike Siegal, Dana Loesch, Thomm Hartmann, Progressive Radio Network, The Blaze, EurWeb, St. Louis Post-Dispatch, SiriusXM satellite radio, TVOne, the Philadelphia Inquirer, the Orlando Sentinel and 50,000-watt talk radio stations including WBZ-Boston, WJR-Detroit, KDKA-Pittsburgh and WLW-Cincinnati. Project 21 has participated in cases before the U.S. Supreme Court regarding race preferences and voting rights and defended voter ID laws at the United Nations. Its volunteer members come from all walks of life and are not salaried political professionals.

Project 21, a leading voice of black conservatives for over two decades, is sponsored by the National Center for Public Policy Research, a conservative, free-market, non-profit think-tank established in 1982. Contributions to the National Center are tax-deductible and greatly appreciated.